With many retailers now beginning to reopen it might be easy to forgive the sector for having to learn as they go and to allow at least some element of trial and error as businesses begin the implementation of their new COVID secure store procedures. While industry might hope for light touch regulation and as much flexible pragmatism as possible from those enforcing the requirements, the idea of constant improvement and evolution of control measures however has not traditionally been an acceptable plan for various local authority and Health and Safety Executive inspectors.

A lot of staff and union consultation has already been undertaken while stores have not been trading over the last twelve weeks. Within the strict letter of the law, on paper those procedures really ought to be ready and in place before the self-certification form has been displayed and the first shoppers are back in store to comply with the onerous requirements of the Health and Safety at Work Act and the recently updated government guidance for retail.

Chris Green, Partner in Crime and Regulatory at law firm Keoghs

While it is hoped that only the most extreme examples with repeated, deliberate or even systemic absence of any documented policies or a commitment to implement them might fall foul of any enforcement action, very often it is the big well-known household High Street names who have the most to fear from some token showpiece prosecution or enforcement notice. While the sometimes perilous position of financial viability may not be as visible as a very high headline turnover figure, it will only take one high profile name to receive an enforcement notice or a prosecution summons to send out a very public deterrent to the rest of the industry. It might be a good time just to refresh how the current requirements fit into the existing legal obligations.

There is a clear recognition from industry and government that not all of the social distancing measures may even be possible, let alone reasonably practicable in a number of retail settings. Care should be taken to consider what is required of a retailer as terminology is vague within the government guidance. Providing retailers have considered whether or not measures are even physically feasible, the guidance does tend to imply that employers need only consider what is in fact reasonably practicable.

COVID-19 is entirely different to many or, some would say, any of the traditional workplace risks that the Health and Safety at work legislation was designed to protect against. Arguably for that reason, the very applicability of the Health and Safety at Work Act to the current circumstances is likely to be questioned in answer to any enforcement activity relating to Coronavirus. Even if the wide ambit of the main employer’s duties is deemed to be wide enough to extend to workplace activities in this context, we need to have considered what might be possible before discounting it as not reasonably practicable.

Statistically the likelihood of contracting COVID-19 in any given setting is relatively low, and then of serious injury even lower but given its potentially fatal nature, and the ease with which it can spread, one could see how enforcing authorities might view this as falling into the high risk category. Unless any specific measures are assessed and deemed “grossly disproportionate”, expectations may arise from the public and staff that more can and should be done. Rather than for example one tightly packed gathering at a certain pinch point in one store leading to any regulatory involvement, retailers might wish to invite inspectors to consider the extent of the measures which are in place and to take a more holistic look at the reasonableness of the system across the estate as a whole. Unless, and until, the 2-metre distance is relaxed, retailers should not let “perfection” get in the way of “realistic” measures and keep them under frequent review as we learn more about customer behaviour and the new high street experience.      

A naturally occurring infectious and potentially fatal disease which exists in society at large is not something that any business could legitimately be expected to eliminate from their stores all together. It will not be possible to prevent the disease from entering a canteen, staff room or store, or to identify the source of any infections that are observed. Even if hand sanitiser or temperature checks were to be required to enter the store, and if marshalling and enforcement of the 2 metre distance were even “possible”, while also following the usual test of what is reasonably practicable, businesses might need to report why it is that they feel a particular control measure may not be necessary.

At this moment in time, although there needs to be a balance between what is possible as a means of reducing the risk of contracting COVID-19, the reality in the retail sector is that these measures might be necessary anyway in order to generate enough consumer confidence to generate a return to sufficient footfall. It will remain to be seen how staff and customer confidence, and their perception of measures that may in truth create very little reduction in risk, play out and how far enforcing authorities are going to demand gold standards when deciding if retailers have done all they reasonably can.

Chris Green, Partner in Crime and Regulatory at law firm Keoghs